IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140411

Docket: M135902

Registry:
New Westminster

Between:

Natalie Minenko

Plaintiff

And

Dmitriy Minenko,
David Kenneth Wyatt, and GMAC Leaseco Corporation/

La Compagnie GMAC
Location

Defendants

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
The plaintiff was a front seat passenger in a vehicle driven by her
husband, the defendant Dmitriy Minenko, on August 29, 2009 when it was in
collision with another vehicle at the intersection of 8^th Avenue and
20^th Street in New Westminster.

[2]            
The defendant was westbound on 8^th Avenue and in the process
of turning left onto 20^th Street to proceed southbound when his
vehicle was struck by another vehicle proceeding through the intersection
eastbound on 8^th Avenue.

[3]            
The defendant’s vehicle was declared a total loss.

[4]            
He has admitted liability for the accident and the trial dealt with an
assessment of the plaintiff’s damages.

[5]            
The impact to the defendant’s vehicle was towards its right side and the
plaintiff’s right arm, shoulder area and head struck the right passenger
window.

[6]            
Initially, the plaintiff thought she was alright and she had the
intention of taking the skytrain back home to get a second car so they could
continue on their journey to their sailboat in Point Roberts, USA.

[7]            
However, shortly after leaving the scene she contacted her husband to
say she was not feeling well and was going to remain at home. At that time she
said she was starting to feel pain in her neck and right shoulder area, and was
getting headaches.

[8]            
When her husband arrived home he took her to the Maple Ridge Hospital
where an x-ray was taken and the treating doctor gave her a prescription for
Tylenol 3 for pain and put her right arm in a sling.

[9]            
The plaintiff says in the hospital her right shoulder, neck, and back
were in pain and she had bad headaches. She also said she was dizzy and
nauseous.

[10]        
Her family doctor was Dr. Laurel Vorobeychik and she saw her doctor
for the first time after the accident on September 1, 2009 with complaints of
headaches, nausea, pain in the neck, shoulder, and back pain, all on the right
side. Dr. Vorobeychik found the plaintiff to be tender on the right side
of her neck and in her mid and upper back area. Her range of motion in her cervical
spine and in her right shoulder was reduced.

[11]        
By that time her nausea and dizziness had disappeared but the doctor
ordered another x-ray which was normal. An ultrasound showed a bruise to her
right shoulder. The plaintiff says at that time her headaches were still
strong, but less intense, but she was having problems sleeping because she
normally slept on her right side which was a challenge with the sling. She says
she could not lift her right arm without any pain. While she cannot remember
having back pain on her first visit to Dr. Vorobeychik, she says she
developed upper and lower back pain in the first month after the accident that
has continued to the present day.

[12]        
Dr. Vorobeychik referred the plaintiff to physiotherapy and
prescribed anti-inflammatory medications and sleep medications for her
difficulty sleeping.

[13]        
The plaintiff says Dr. Vorobeychik also prescribed massage therapy
but it offered her no positive results. She says physiotherapy was helpful in
January and February 2010 when she started to use her right arm again. She had
a CT scan of her cervical spine on May 4, 2010 which revealed a small posterior
central disk protrusion at C5-6 which is unrelated to the accident.

[14]        
The plaintiff was 39 years of age at the time of the accident having
come to Canada with her husband in 1996 from the Ukraine, and was a corporate
controller in the mining industry for J Proust & Associates Inc., a
management company for a number of mining companies.

[15]        
Her responsibilities were to provide the services of a corporate
controller including financial reporting and tax compliance.

[16]        
She had started at J Proust & Associates Inc. on December 8,
2008 and at the time of the accident was working full time at a rate of
$6,500 per month.

[17]        
The chief financial officer of J Proust at the time was Mr. Epshtein,
who became a great supporter of the plaintiff.

[18]        
The plaintiff was off work totally, and then intermittently, from August
29, 2009 to December 31, 2009, returning to work at J Proust on November 23,
2009 on a gradual basis for the first three weeks.

[19]        
At the time of the accident she was studying for her Certified General
Accountants (“CGA”) exam but was delayed in taking that exam by her injuries
until May 31, 2010 when she obtained her CGA Degree.

[20]        
Her past wage loss claim from these injuries has been agreed to by the
defendant in the net amount of $11,816 and her past special damages have been
agreed to in the amount of $4,126.06.

[21]        
Initially the plaintiff says she was not able to drive a vehicle but
progressed to being able to drive with some restriction of her ability to look
over her left shoulder because of the pain it produces in her right neck area.

[22]        
She says she is still a very cautious driver on the road.

[23]        
She says presently she has a dull pain in her right arm and shoulder
area all the time and still gets headaches, although her complaints have all
lessened somewhat.

[24]        
She continued to see Dr. Vorobeychik who holds the opinion that it
is more likely than not that the plaintiff’s symptoms will persist in the
foreseeable future with occasional flare-ups.

[25]        
Dr. Vorobeychik says the plaintiff’s complaints are aggravated by
prolonged sitting or heavy lifting but as long as her workplace is willing to
accommodate her limitations, she should be able to work full-time.

[26]        
The plaintiff was referred to Dr. Shuckett, a rheumatologist, by
her lawyers.

[27]        
Dr. Shuckett saw the plaintiff on August 2, 2013 and says that the
plaintiff has probably achieved maximum medical recovery and will be left with
her current symptoms.

[28]        
She says the plaintiff is not disabled from work although it may be more
difficult for her and she should do regular walking and some regular aerobic
exercises that do not over-use her upper body and arms.

[29]        
Dr. Shuckett also suggests flexeril pills to decrease muscle spasm
and assist the plaintiff in sleep, along with local trigger point injections
and/or Botox injections into the area of muscle spasms in the right neck and
shoulder girdle region could be considered.

[30]        
Injection therapy, if it works, in her opinion has to be repeated every
six months or so which applies to any Botox injections as well.

[31]        
The plaintiff says in her evidence that she wants to try the Botox
treatments.

[32]        
Dr. Shuckett says how well the plaintiff will tolerate needle-type
treatments remains to be seen as the plaintiff found that acupuncture
treatments caused some shaking of her body.

[33]        
These injection treatments will not get rid of the pain according to Dr. Shuckett,
on any permanent basis, but may help to ameliorate the level of pain and its
impact on the plaintiff’s quality of life.

[34]        
Dr. Shuckett says she has considered whether the plaintiff might
have thoracic outlet syndrome or brachial plexus impingement related to her
myofascial injury and muscle spasm, and an MRI scan of the right brachial
plexus should be strongly considered.

[35]        
It appears this MRI was carried out on September 2, 2013 and it produced
an unremarkable examination of the right brachial plexus.

[36]        
Dr. Shuckett also says it might be considered to refer to the
plaintiff to an expert in thoracic outlet syndrome such as Dr. Salvian,
although he has a waiting list of approximately five years.

[37]        
Dr. Shuckett says if the plaintiff has thoracic outlet syndrome it should
be treated conservatively.

[38]        
At trial, she says she believes she is qualified to diagnose thoracic
outlet syndrome but defers to Dr. Salvian for the ultimate opinion on this
as he is the primary expert on it.

[39]        
At trial, she strengthens her opinion somewhat by saying she believes
the plaintiff has mild thoracic outlet syndrome.

[40]        
The plaintiff says she also initially suffered from anxiety attacks in
the night, but only occasionally does so now. Currently, she says she has
headaches and constant dull pain in her right arm, as well as the right
shoulder and right upper back area. Any physical activities cause her pain in
her right arm and this increases over a busy day.

[41]        
She takes Advil during working hours but continues working.

[42]        
She takes an Advil pill each morning for her headache and an average of
one-three per day every day of the week. If she has taken a sleeping pill she
feels rested. She takes these sleeping pills five times per week during the
workdays but tries to avoid them on the weekends.

[43]        
The Advil cost $20.98 for 80 pills.

[44]        
The sleeping pill is Zopiclone that cost $35.59 for 100
pills. Botox costs $803.63 for 200 units.

[45]        
Prior to the accident, the plaintiff says she and her
husband and daughter did a lot of camping, hiking and skiing. They owned a
two-person kayak and she enjoyed power yoga. She says she did the
housecleaning, cooking and gardening and cut the grass in addition to working
full-time and had no health problems.

[46]        
She and her husband were avid sailors. They started off
with a 26 foot sailboat in 2007 and traded that in for a 36 foot boat in 2008.
All three in the family like to sail and her husband and she tried racing in
the fall and spring seasons. In the summer of 2009, they used the
sailboat every weekend.

[47]        
At the time of the motor-vehicle accident, they owned the 36 foot
sailboat but it was steered with a tiller that the plaintiff found difficult to
handle in the wind with her pain complaints.

[48]        
From January 2010 to July 2012 they sailed with a friend onboard to help
with her steering in the wind.

[49]        
After the accident, the plaintiff says her husband and daughter now help
with the cooking and cleaning. She says she still tries to do as much as she
can. Her husband helps her clean the house but she says she continues to
vacuum, wash the floors two or three times a week and clean bathrooms once a
week.

[50]        
While her husband and daughter help with the cooking and cleaning since
the accident, in her view neither does as good a job as she could. Prior to the
accident, she liked to do all of it herself her way and is the same since the
accident. She does not continue her yoga any longer as it causes pain and her
husband now cuts the grass. She also has not returned to skiing because of the
pain and the only hiking she and her husband do is on non-challenging runs.

[51]        
While she still drives a vehicle, she is not as comfortable sitting in
the passenger seat any longer.

[52]        
She left her employment at J Proust and Associates in December 2010 and
joined WMM Services Corp. in that month full-time. Her income prior to the accident
in 2007 was $93,854. In 2008 it was $92,109 and in 2009, the year of the
accident, it was $62,850 because she was off for three months.

[53]        
Following the accident, in 2010 she made $88,000, in 2011 $103,578, in
2012 $106,034.06, and in 2013 $139,078.66.

[54]        
She says she only makes an average income as a controller with a CGA
designation.

[55]        
WMM Services Corp. worked as a management company for Western Lithium
and Concordia, another mining company, but as of January 2014 she and Mr. Epshtein
have decided to work directly for Western Lithium which she now does.

[56]        
She says her 2014 salary will be $120,000 plus performance bonuses and
she says she has received performance bonuses every year.

[57]        
She says her job now takes longer because she has to take frequent
breaks for her injury complaints and it is upsetting to her to have to take
breaks in the busy season.

[58]        
Her basic work day is 7:30 a.m. to 4:30 p.m. but in the busy season she
also works weekends.

[59]        
Generally she says she works overtime on weekends as needed to meet filing
deadlines.

[60]        
Mr. Epshtein is her boss and she likes working with him. He has
never complained about her performance and her performance reviews have always
consisted of “thanks for a great job”.

[61]        
She says if she lost her present job, she would get another job as a CGA
and would not consider any labouring employment.

[62]        
She and her husband sold their 36 foot sailboat in July 2012 and
purchased a 40 foot sailboat with a large steering wheel instead of a tiller
for her to handle easily.

[63]        
She says she can handle the large steering wheel without any complaints.
They take the boat to the San Juan Islands and have gone on one race in the
fall of 2013.

[64]        
She says her husband is the sailor between the two of them. She steers
and he mans the sails and she says it was this way before the accident as well.

[65]        
Since January 2010 she and her husband have vacationed to Cuba and to
their homeland of the Ukraine and have just returned from Sydney, Australia in
February 2014.

[66]        
The plaintiff’s daughter, husband and her two friends have slightly
different evidence of her abilities after the accident with her injuries.

[67]        
Her daughter who is 20 years of age says that since the accident she and
her father do the housework and the plaintiff does very little. Father works
from home now and so he is available to prepare the meals. The daughter gets
home after 2:00 p.m. and can assist him. The daughter says that her mother
tries to re-do whatever she doesn’t like that they are doing. The cooking is
split between her father and her because her mother is the last one to arrive
home during the week. The daughter says her mother cooks on the weekend.

[68]        
The daughter says that prior to the motor-vehicle accident, her mother
did the cooking even though she was also working.

[69]        
Prior to the accident, she says her mother and father did the gardening
while her father mostly mowed the lawn. Since the accident, her mother does no
yard work at all.

[70]        
She says her mother is noticeably quieter now and looks tired. When she
is driving her vehicle, she is more focused on her surroundings. She has
troubling sleeping and takes sleeping pills.

[71]        
The defendant husband says prior to the accident he prepared some of the
dinner meals. Now he prepares more meals because his wife is busy at work and
he is working from the home front.

[72]        
He says he still does most of the driving as his wife is an anxious
driver.

[73]        
He confirms prior to the accident his wife did most of the household
chores although he helped with the heavier tasks. Mowing the lawn was shared
between the two of them but since the accident he does it all.

[74]        
He says he does most of the shopping now as he is at home while prior to
the accident the plaintiff did the grocery shopping and he assisted.

[75]        
He confirms that he and their daughter do most of the cooking now.

[76]        
He confirms his wife still has headaches on a daily basis and her
complaints have remained the same over the last three years. She has also has
difficulty sleeping and complains about his snoring. He has therefore agreed to
sleep in another bedroom and he says this has negatively affected their
relationship. He says that she still blames him for the accident.

[77]        
The plaintiff’s friends Ms. Bokhan and Ms. Tereshemko say that
the plaintiff now looks like she is in pain and has some sadness in her eyes
and appears always tired. She is less active now and smiles less and her mood
is different. They say the plaintiff still does some cooking together with her
husband.

Submissions

[78]        
The plaintiff submits she has been left with chronic pain in her neck,
right shoulder girdle area, right arm and mid-back area, with daily headaches,
sleeping difficulties and increased anxiety.

[79]        
She is not claiming that the injuries have rendered her as an invalid.
She has been working and performing all her duties at work but it now takes her
longer to complete them.

[80]        
She has returned to some of her activities that she engaged in before
the accident, such as sailing, but presently foregoes her former activities of
yoga, skiing and kayaking.

[81]        
There is no evidence her injuries can be alleviated through surgery but
some of the pain may be ameliorated through the use of Botox.

[82]        
She submits her life is changed at a fundamental level. Her witnesses
describe her as less happy, more anxious and tired looking.

[83]        
She seeks an award of $90,000-$100,000 for non-pecuniary damages for
pain and suffering relying upon cases alleged to be similar where the awards
were in that range.

[84]        
Past special damages and past income loss have been agreed to. For loss
of future earning capacity she seeks an award based on the capital asset approach
explained in Brown v. Golaiy, 1985 CanLII 149 (B.C.S.C.).

[85]        
She says she has been rendered less capable overall from earning income
from all types of employment, she is less marketable or attractive as an
employee to potential employers, she has lost the ability to take advantage of
all job opportunities which might otherwise have been open to her if she were
not injured, and she is less valuable to herself as a person capable of earning
income in a competitive labour market.

[86]        
It is submitted that she is less able to take all employment that does
not permit her to take breaks or is not flexible in getting the work done such
as allowing her to work from home. The concern is that other employers are less
likely to be concerned about her headaches and chronic pain affecting her
ability to perform her duties in a timely fashion. She works for small
companies in the mining industry and if those companies run out of money, she
says she will be laid off and will have to look for another CGA position.

[87]        
She seeks an award for loss of future earning capacity equal to three
years of her annual income at the median range, to a total of $210,000.

[88]        
She concedes there is no evidence that she cannot fulfill her duties to
her current employer and she is clear in her evidence that she can perform all
of her duties although it takes longer, but it is submitted that this is a
relatively new and risky endeavour and she is at risk of a downturn in the
economy or the company running out of money and losing her job.

[89]        
At a minimum, she seeks an award under this heading of $50,000.

[90]        
For the cost of future care claim, she seeks an award equal to what she
expects to have to pay for her sleeping pill and her pain pill, together with
the cost of Botox, for the rest of her life.

[91]        
She calculates the lifetime cost of these three medications using the
actuarial tables of Mr. Carson of Associated Economic Consultants Ltd., at
$21,188, and suggests an award of $15,000-$20,000 would be appropriate.

[92]        
As to any defence that her extended health carrier may pay for some or
all of these costs in the future, she submits that these benefits are all part
of her work benefits and therefore recoverable by her and there is no guarantee
in any event that she will have these work benefits through her life time.

[93]        
Finally, she makes a claim for loss of housekeeping capacity on the
basis that now her husband and daughter have to do a lot of the home chores
that she used to do. She says she has lost the ability to work at home in a
manner that would have been valuable to her. For this claim, she seeks an
amount of $5,000-$10,000.

[94]        
The defendant submits a diagnosis of thoracic outlet syndrome for the
plaintiff as not been proven by the evidence, although it is conceded that she
has ongoing complaints of pain in her right arm, shoulder and neck with
numbness on occasion in her right hand.

[95]        
Relying on decisions in cases that the defendant also submits deal with
similar injuries, he submits an award for non-pecuniary damages should be in
the order of $55,000.

[96]        
For loss of future earning capacity, he submits the plaintiff has not
proven on a balance of probabilities that she has been rendered less employable
overall as a result of her injuries.

[97]        
It is submitted there is no real and substantial possibility of a loss
of future earning capacity related to her ability to perform her present
employment or any other employment as a CGA or controller in the future.

[98]        
She is continuing to perform her employment duties without interruption.
There is no evidence her employer has any dissatisfaction with her work. In
fact, she is a highly regarded employee who has no intention of ever leaving
the CGA/controller field of work and appears able to perform all of her duties
in her chosen field on a full-time basis.

[99]        
It is submitted there is no evidentiary basis for a separate loss of
housekeeping capacity claim and the claim for cost of future care should be
confined to Advil for two years with the need for Botox not established or at
most only for a two-year period of time.

Analysis and decision

[100]     I have reviewed
all of the cases cited to me by both counsel on the issue of non-pecuniary
damages and in my view, the sum of $80,000 is an appropriate amount to award
the plaintiff for her pain and suffering and loss of enjoyment of life and as
well for her loss of housekeeping ability.

[101]     The claim
for past wage loss is allowed in the agreed amount of net $11,816 and special
damages in the agreed amount of $4,126.06.

[102]     In Perren
v. Lalari, 2010 BCCA 140, Madam Justice Garson, writing the decision for
the Court made it clear that a plaintiff must always prove that there is a real
and substantial possibility of a future event leading to an income loss. Mere
speculation of future loss of earning capacity is not sufficient to justify an
award for damages for loss of future earning capacity.

[103]     In that
case, the trial judge had said that the plaintiff’s loss of future earning
capacity rendered her less marketable than she was before the accident but not
in a way that demonstrated any substantial possibility that she would suffer an
associated loss. Her talent and inclination were in the fields of office work
and management and she would not give up her current employment voluntarily except
perhaps to move into a related position.

[104]     In those
circumstances the trial judge awarded the plaintiff $10,000 as a modest amount
for an impairment to her future earning capacity.

[105]     In the
Court of Appeal Madam Justice Garson pointed out that once the trial judge had
found there was no substantial possibility of a future event leading to an
income loss that should have been the end of the inquiry, and she set aside the
award for loss of future income earning capacity.

[106]     Here the
plaintiff submits that while she will continue to use her education and skills
she is not able to take all jobs that do not permit her to take breaks or have
flexibility as to when the work is done as long as the work is completed, as
she is able to do in her present employment.

[107]     The
plaintiff is a highly skilled and a dedicated employee, and obviously highly
valued by her employer. She may not work as efficiently as she did prior to
this accident but she is able to get the job done to the complete satisfaction
of her employer.

[108]     Like the
trial judge in Perren, I am unable to conclude that there is any real
and substantial possibility of her suffering a loss of future earning capacity.
She is clear that if she loses her present employment because of market forces,
she will simply find another job in her chosen field. Her history in that field
demonstrates that she has been able to perform at a high level both before the
accident and up to the present day.

[109]     This claim
is denied in its entirety.

[110]     With
respect to the claim for future care costs, the plaintiff has not begun any Botox
treatments, she only says that she is willing to try them, she has a reluctance
to needle injections, and it is unclear to me as to whether she will take the Botox
treatments, whether they will be successful, and whether she will continue with
them.

[111]     Nevertheless,
I consider there to be a real and substantial possibility of her taking the Botox
treatments but that does not warrant an award of the full cost of a lifetime of
Botox treatments.

[112]     Together
with the cost of Advil and Zopiclone I consider a fair and just
award for future care costs to be $15,000, to include the possibility of Botox
treatments.

[113]     The plaintiff will have her costs of this action at Scale B, in the
absence of any applicable offer to settle having been made by the defendant.

“The Honourable Mr. Justice Truscott”